UPDATE: State Supreme Court upholds strip club restrictions

Tuesday, November 15, 2011 | 8:12 p.m. CST

BY
David A. Lieb/Associated Press

JEFFERSON CITY — Missouri strip clubs and other sexually themed businesses must abide by a 2010 state law that banned nudity, alcohol and touching between scantily clad employees and customers, the state Supreme Court ruled Tuesday.

The court in a unanimous decision rejected claims from the adult entertainment industry that Missouri's law infringed on free expression rights and was passed in violation of legislative procedures. Instead, it ruled that legislators justifiably cited public health, welfare and safety concerns in restricting the operation of such businesses.

The ruling marked a long-sought victory for conservative lawmakers, who have tried for years to limit the sexually themed businesses that have proliferated along the state's main highways and in some cities. The state Supreme Court struck down a similar 2005 state law because it was attached to an unrelated bill about drunken driving.

As a result of Tuesday's ruling, "Missouri now retains one of the toughest and most comprehensive laws regulating sex shops and strip clubs of any state in the nation," Joe Ortwerth, executive director of the Missouri Family Policy Council, said in an email to supporters. He added: "We praise God for this tremendous victory."

Dick Bryant, an attorney for the affected business owners and employees who challenged the law, said he was considering an appeal to the U.S. Supreme Court.

"We believe the decision is a major erosion of rights of free expression afforded under the constitutions of Missouri and the United States," he said in an email to The Associated Press.

The 41-page opinion by the state Supreme Court affirms the decision of a Cole County judge, who had refused a request to block the law from taking effect on Aug. 28, 2010.

The Missouri law applies to strip clubs, adult video and book stores and other businesses of a sexual nature. It bans full nudity, alcohol, anyone younger than 18 and touching between semi-nude employees and customers. To ensure strippers are off-limits, the law requires semi-nude employees to remain on a stage at least 18 inches high and at least 6 feet from customers. The law also requires sexually oriented businesses to stay closed between midnight and 6 a.m., and it prohibits closed-door viewing booths for pornographic movies, requiring that patrons remain within the clear view of employees.

The state Supreme Court rejected the lawsuit's contention that the restrictions were aimed at free speech. Instead, the court cited wording from the legislation stating that the restrictions were intended to promote the health, safety and general welfare of the public by limiting the negative societal effects associated with such businesses, including crime, prostitution, the spread of diseases, drug use and urban blight.

Former state Rep. Ed Emery, who handled the bill in the House, said lawmakers carefully crafted its preamble with the goal of surviving a court challenge. He was pleased to hear they succeeded.

"The research that had gone into the preparation of that bill assured that it would be constitutional, but in this day and age you just never know until the ruling comes down," said Emery, a Republican from Lamar.

Former Sen. Matt Bartle, a Republican from Lee's Summit who sponsored the legislation, said he hoped the Supreme Court ruling would lead to broader enforcement of the law by local prosecutors.

The high court rejected the adult entertainment industry's assertion that the state had to show that negative effects were more common at their businesses than at other places. To the contrary, the court said the plaintiffs failed to produce evidence directly casting doubt on lawmakers' contention that banning things such as nudity and touching promotes public health and safety.

Some owners of the affected businesses have complained that the law harms them financially and could force them to close. But the state Supreme Court said that was no reason to strike down the law.

"To the extent that the no-touch, six-foot buffer, alcohol ban and open-booth restrictions reduce patronage at sexually oriented businesses, it is not because the restrictions unduly reduce speech, but because they reduce the very types of secondary effects that the government is entitled to and intends to reduce," Judge Laura Denvir Stith wrote.

The Supreme Court also rejected an argument that the Legislature violated the state constitution because a particular committee did not hold a hearing on a lawmaker's challenge to the bill's cost estimate. The court said the constitution only requires the committee to be established and meet and does not provide any basis to strike down a law because of a procedural error.